Legal aid and civil justice

Effective access to the courts is being threatened.

Yesterday's written statement of the Lord Chancellor, Kenneth Clarke QC MP began well enough. Introducing the Legal Aid, Sentencing and Punishment of Offenders Bill, he said:

Protecting the public from crime, ensuring those who break the law face the consequences, and providing swift, cost-effective and fair access to justice are fundamental responsibilities of the state towards its citizens.

So there you have it. In respect to both civil and criminal justice, providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens.

But in respect of civil justice -- where one party takes another to court -- what does that actually mean?

Civil courts have two broadly overlapping functions. They provide a forum for settling disputes and they provide the means by which individuals can rely on their legal rights. Ideally, a civil court should do both: disputes are resolved by a judge determining the respective legal rights of the claimant and defendant.

In practice, however, almost all civil litigation is settled before it gets anywhere close to a judge for final disposal. As a general rule, litigation is settled in favour of the party in the stronger negotiating position: the party with more money, with better access to appropriate legal advice, and with the greater ability to assume the risk of losing.

In this way, the early settlement of civil disputes will usually tend to disadvantage the claimant or defendant that is weaker than the opposing party. It is only if the claimant can get their case before an impartial and independent court that they can hope to take the benefit of their legal rights. Otherwise, civil litigation is reduced to what the stronger party can get away with. Dispute resolution -- even "early dispute resolution" -- is not identical to access to justice. Indeed, it can mean the reverse.

With this in mind, let us see what Clarke also said yesterday in the written statement, specifically about civil justice:

In civil justice, we have a system burdened by spiraling costs, slow court procedures, unnecessary litigation, and too limited an awareness of alternatives to court -- all of which add to a fear of a compensation culture. In particular, our current system of legal aid too often encourages people to bring their problems before the courts, even when they are not the right place to provide good solutions and sometimes for litigation that people paying out of their own pocket would not have pursued.

However, these appear to be weasel words.

Take, for example, "our current system of legal aid too often encourages people to bring their problems before the courts" and replace the word "encourages" with the word "enables". If the reality of the matter is that the current system of legal aid enables weaker parties to have access to justice - and the determination of their legal rights by judges - this cannot be sidestepped easily by mischaracterising this access as "encouragement".

Similarly, take "sometimes for litigation that people paying out of their own pocket would not have pursued" and replace the word "would" with "could". Again, if people cannot pursue litigation but for the system of legal aid, then Clarke is mischaracterising the effect of that system.

So in one written statement, Clarke gives an assurance that he accepts providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens; and then a few sentences later he undermines that assurance in respect of civil justice by deftly casting aspersions on those who use legal aid so as to gain access to the courts for the determination of their legal rights.

In fact, the assault on the civil legal aid system announced yesterday is horrific and wrong-headed.

Instead of seeking to target civil legal aid on cases which may not otherwise be able to proceed to court, the Ministry of Justice is simply taking whole areas of civil law out of the system altogether.

At a stroke, legal aid will no longer be available for clinical negligence, employment, immigration, and welfare benefits cases. It will also not be available for most private family law cases, debt and housing issues, and education cases.

Just listing these areas of law makes one realise that it will be those less able and less equipped to deal with the stress and sheer expense (and costs risks) of civil litigation. Without civil legal aid, weak parties will simply be at the mercy of the litigation strategy of the stronger party.

For example, in family cases - as the Conservative MP Helen Grant pointed out yesterday in the Commons:

mediation is no panacea and that it can fail badly in family cases where there is an imbalance in power.

And it gets worse. The hope of the Ministry of Justice is that some of those who will no longer have access to civil legal aid will obtain legal help on a "no win no fee" basis, especially in respect of clinical negligence. This means that the claimant's lawyers will, if successful, charge an additional "uplift" on their fees, sometime up to 100 per cent of their actual charges, to the losing party. As the defendant will invariably be some part of the National Health Service, these "savings" will in practice cost the taxpayer twice the amount: it will just be the Department of Health's problem, not the Ministry of Justice's.

Then there is the general effect of their being more claimants and defendants without legal assistance. "Litigants in person" are a considerable drain on any courts resources. What should be one hour applications will tend to last one day, and trials which should take one day will tend to last a week. Accordingly, removing civil legal aid will be a false economy for the civil justice system as a whole.

There is no perfect form of ensuring access to justice for civil litigants without private resources. And the Ministry of Justice is having to make savings thrust upon it by the government as a whole. It cannot be blamed as if this were a policy that it formulated free from budget restraints.

All that said, the cuts to civil justice legal aid make no sense on their own terms and could cost the state more overall.

There is no reason to believe that law firms will be able to provide advice to those who no longer qualify; and those firms that do will seek often to burden the taxpayer by other means, through higher costs.

Individuals without civil legal aid or other access to lawyers will simply not seek to rely on their legal rights, or will be bullied into unfair settlements, or will clog up the already inefficient civil courts. None of these are attractive outcomes.

It may be that our Lord Chancellor sincerely believes providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens. However, his department's current civil justice aid policy means this "fundamental responsibility" will certainly not be discharged in practice.

 

David Allen Green is legal correspondent of the New Statesman and a practising solicitor.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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To heal Britain’s cracks, it’s time for us northern graduates in London to return home

Isn’t it time for people like me, who’ve had privileges and experiences not open to everyone, to start heading back to our local communities, rather than reinforcing London’s suffocating dominance?

I’m from Warrington. The least cultured town in the UK. My town.

I moved to London almost exactly five years ago. Not because I particularly wanted to. Not because I wanted to depart the raucous northern town that I still call home. Because it was my only choice, really. I’d done my stint in the call centres and had some fun. But that couldn’t, surely, be my lot?

After university, I’d already started feeling a little weird and out of place back in Wazza. There were fewer and fewer people who didn’t look at me like I’d just fallen off a futuristic space flight that’d given me a different accent and lofty ideals.

Of course, that’s because most people like me had already skipped town without looking back and were all in the capital trying to strike beyond the ordinary.

The young, the cities, the metropolitan elite are still reeling after last week’s vote and wondering how people, half of our people, have got it so horribly wrong. We’re different, divided, done for.  

One thing I’ve clung onto while I’ve been in London is the fact that I’m from Warrington and proud. It might not be a cultured town, but it’s my town.

But I wasn’t proud of the outcome of the EU referendum that saw my town vote 54.3 per cent to 45.7 per cent to leave.

To be fair, even in my new “home” borough of Hackney, east London, the place with the third-largest Remain vote, one in five people voted for Brexit.

Yes, in one of London’s hottest and most international neighbourhoods, there are quite a lot of people who don’t feel like they’re being taken along to the discotheque.

Perversely, it was the poorest places in the UK that voted in largest numbers to leave the EU – that’s the same EU that provides big chunks of funding to try to save those local economies from ruin.

In many ways, of course, I understand the feelings of those people back in the place I still sometimes think of as home.

Compared to many suffering places in the UK, Warrington is a “boom town” and was one of the only places that grew during the last recession.

It’s a hub for telecoms and logistics companies, because, ironically, its good transport links make it an easy place to leave.

But there are many people who aren’t “living the dream” and, like anywhere else, they aren’t immune from the newspaper headlines that penetrate our brains with stories of strivers and scroungers.

Warrington is one of the whitest places in the UK, and I’m sure, to many locals, that means those immigrants are only a few towns away. There’s already a Polski sklep or two. And a few foreign taxi drivers. Those enterprising bastards.

We have never seriously addressed the economic imbalance in our economy. The gaping north-south divide. The post-industrial problem that politicians in Westminster have handily ignored, allowing the gap to be filled by those who find it quick and easy to blame immigrants.

When schemes like HS2, which is plotted to smash right through the place I grew up, are pushed against all of the evidence, instead of a much-needed, intercity Leeds to Liverpool investment to replace the two-carriage hourly service, it’s like positively sticking two fingers up to the north.

But I am also a big problem. People like me, who get educated and quickly head off to London when things aren’t going our way. We invested in ourselves, sometimes at state expense, and never really thought about putting that back into the places where we grew up.

There weren’t the right opportunities back home and that still stands. But, rather than doing something about that, people like me lazily joined the gravy train for London and now we’re surprised we feel more kinship with a 20-something from Norway than we do with someone who we used to knock on for when we should have been at school.

That’s not to suggest that our experiences in the capital – or mine at least – haven’t made us a thousand, million times better. 

I’ve met people who’ve lived lives I would never have known and I’m a profoundly better person for having the chance to meet people who aren’t just like me. But to take that view back home is increasingly like translating a message to someone from an entirely different world.

“You know, it’s only because you live in a country like this that a woman like you is allowed to even say things like that,” assured one of my dad’s friends down at the British Legion after we’d had a beer, and an argument or two.

Too right, pal. We live in what we all like to think is an open and tolerant and progressive society. And you’re now saying I shouldn’t use that right to call you out for your ignorance?

We’re both Warringtonians, English, British and European but I can increasingly find more agreement with a woman from Senegal who’s working in tech than I can with you.

It’s absolutely no secret that London has drained brains from the rest of the country, and even the rest of the world, to power its knowledge economy.

It’s a special place, but we have to see that there are many people clamouring for jobs they are far too qualified for, with no hope of saving for a home of their own, at the expense of the places they call home.

It’s been suggested in the past that London becomes its own city-state, now Londoners are petitioning to leave the UK.

But isn’t it time for people like me, who’ve had privileges and experiences not open to everyone, to start heading back to our local communities, rather than reinforcing London’s suffocating dominance?

We can expect local governments to do more with less, but when will we accept we need people power back in places like Warrington if we want to change the story to one of hope?

If this sounds like a patronising plan to parachute the north London intelligentsia into northern communities to ensure they don’t make the same mistake twice... Get fucked, as they say in Warrington.

It was Warrington that raised me. It’s time I gave something back.

Kirsty Styles is editor of the New Statesman's B2B tech site, NS Tech.